Like Sand through the Hour Glass, so are the Wills of our lives…
Wealth, billion dollar companies, steamy affairs, and forbidden love are often at the centre of scandalous story lines and highly publicised family disagreements. However, even without these dramatic events, there is still a need to protect your assets. A fundamental tool in achieving this is by having a Will.
If you die without a Will (or a valid Will), you die ‘intestate’, and state legislation will determine how your estate is distributed. The current Administration and Probate Act contemplates three main situations:
- Spouse or domestic partner only
If you die leaving only a spouse or domestic partner, your estate will eventually go to that person. But the Act is clear that if you have a spouse and a domestic partner, the estate is divided equally amongst them.
- Spouse or domestic partner and children
If you die leaving a spouse or domestic partner and children, distribution of your estate will depend on its value. Estates worth $100,000 or less are distributed to your spouse or domestic partner. If your estate is worth more than $100,000, your spouse or domestic partner is entitled to $100,000 plus half of the balance of your estate, with your children entitled to the other half in equal shares.
- Children only
If you die leaving children only, your children are entitled to the whole of your estate, again in equal shares.
If none of the above situations applies, your estate may be distributed to any surviving relatives including, depending on your circumstances, grandchildren, parents, siblings, grandparents, aunts or uncles. If all your relatives are already dead, your estate goes to the Crown (government).
Dying without a Will is particularly problematic if the family home is in only the deceased’s name and there are children or other beneficiaries that will inherit. A surviving spouse or partner must decide, within three months, to acquire the house for its market value. The value of the house will decrease the amount the spouse or domestic partner is entitled to in the estate. If the value of the house exceeds the amount the spouse or domestic partner will receive from the estate, they must pay the difference into the estate.
Having a Will also allows you to stipulate things that are important to you. For example, if you feel strongly about burial or cremation, funeral arrangements, where your company’s assets are (or aren’t) to go, who should be the appointor or trustee of any discretionary trusts, or the guardians of children under 18 years old, or any charities to which you may wish to donate to, it is important that you mention these in your Will.
No-one enjoys talking about death, but it is an important conversation to have. Avoid the drama. Make it easy for your family, and we can make it easy for you.
Please contact us if you have any questions or require any further information.